HKSAR v. SOHAG HOWLADER

CACC 83/2021

[2023] HKCA 923

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 83 OF 2021

(ON APPEAL FROM HCCC NO 399 OF 2019)

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REASONS FOR JUDGMENT

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Hon M Poon JA (giving the Reasons for Judgment of the Court)

The introduction

1.  On 24 March 2021, the applicant was convicted after trial before Barnes J (“the judge”) and a jury, of one count of “trafficking in dangerous drugs”, namely, 17.9 grammes of cocaine and 66.3 grammes of methamphetamine hydrochloride (“Ice”), contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. The applicant was sentenced to 11 years and 9 months’ imprisonment.

2.  On 19 April 2021, the applicant filed a notice of application for leave to appeal against conviction (Form XI). Originally a total of five grounds were advanced.  The first ground was abandoned at the leave hearing.  Leave was refused on Grounds 2 to 5 by the Single Judge^[1].

3.  On 16 June 2022, the applicant filed a notice seeking to renew his application for leave to appeal against conviction (Form XIII) and sought to argue Grounds 2 to 5 again.  Three new grounds were added in his written submission dated 17 October 2022, and he supplemented those in his letters dated 6 February 2023 and 1 March 2023.  He appeared in person at the hearing of his renewed application.

4.  On 14 July 2023, having heard arguments from the applicant and the respondent, we refused the application and dismissed the appeal with an order of 3 months’ loss of time.  We said we would hand down the reasons for our decision in due course.  This we now do.

The prosecution case

5.  On 28 April 2019, having obtained a search warrant in respect of Room C, 3^rd Floor, 23 Wing Kwong Street, To Kwa Wan (“Room C”), police officers proceeded to the premises.  It was the prosecution’s evidence that the applicant answered the door[2].  It was not in dispute that the applicant was the sole tenant of Room C.

6.  According to the prosecution witnesses, they found the drugs in question on the bedside table.  Alongside the drugs were two bottles of water and two cigarette butts inside a tin on the bedside table.  A tenancy agreement and a statement of account in the name of the applicant were found^[3]. The drugs were packed into four resealable plastic bags placed inside a white bag with red and blue letters.  The total street value of the drugs was HK$223,000^[4].

7.  It was an admitted fact that the applicant’s DNA was present on the cigarette butts and one of the bottles^[5].  His right middle fingerprint was found on the inside door to the bedroom^[6].

8.  The applicant was arrested.  He subsequently took part in a video-recorded interview (the “VRI”)^[7].  At the beginning, the applicant said he did not want to say anything^[8].  However, he later admitted that he was the tenant of Room C and lived there alone^[9]. He claimed that he did not know why the four resealable bags were found on top of his bedside table and he had no knowledge of their contents^[10].

9.  There was also evidence that two days prior to the arrest, i.e. 26 April 2019, as a result of information received in relation to Room C, the permises had been searched by another team of police officers with nothing incriminating found^[11].

The defence case

10.  The applicant elected to give evidence.  He had come from Bangladesh, arriving in Hong Kong in 2004.  At the material time, his application for asylum was still pending^[12]. In a nutshell, the defence case was  there had been a frame-up by the police or someone who bore a grudge against him^[13].

11.  The applicant admitted that he had been the tenant of Room C for a year, the rent being paid by the International Social Services and his brother^[14]. He said that the lock on the grille and the wooden front door of Room C were faulty and a wire was used to secure them when he went out; they would be more securely locked once he was inside^[15].

12.  He said that after the search was conducted on 26 April 2019 with nothing illegal found, a police officer asked for his telephone number.  He claimed that monetary reward was offered if he should provide information to them in the future^[16].

13.  The applicant testified that he returned from having drinks with his friends in the small hours of 28 April 2019.  He secured the grille and wooden door from the inside and went to bed^[17]. He was awoken by a sound the following morning and saw a man (who was later identified as PW2) walk towards him with a black briefcase^[18].  He said that PW2 revealed his police identity and put on a pair of gloves before he crawled under the applicant's bed and came out later with a white bag containing a small bag.  The applicant stressed that this was not the white bag with red and blue letters^[19]. The police officers said that the drugs belonged to him and shoved the small bag into his palm.  Later on, he saw PW2 take out the white bag with red and blue letters from his black briefcase and put it on the bedside table for taking photographs^[20]. He also explained how his DNA came to be on the cigarette butts and the water bottle[21].

The grounds of appeal

14.  In this renewal application a total of six grounds were advanced.  Grounds (3) to (6) (originally “Grounds (2) to (5)”), which had been argued by his counsel in the leave application, were renewed.  There were before us two additional grounds of appeal (now numbered as Grounds (1) and (2)).  Although there was no explanation given for the delay and no application for extension of time in which to file these new grounds[22], we heard and considered them on a provisional basis to ensure that we were not shutting out reasonably arguable grounds.

Grounds of Appeal

15.  The 6 grounds were as follows:

(1)  The interpreter at trial failed to translate the evidence of the prosecution witnesses to the applicant, which deprived him of an opportunity to afford an explanation to the jury.  This was exacerbated by the failure of his then legal representatives to forward his request for a change of interpreter;

(2)  Photograph 4 in the photograph album was not clear enough to show the defective door lock.  A clear photograph would have supported the defence case and demonstrated the truth of the applicant’s evidence;

(3)  The judge erred in failing to give any direction on the “target evidence” regarding Room C, in accordance with HKSAR v Chung Tang Ping^[23];

(4)  The judge failed to give timely and sufficient directions on the drawing of inferences when the present case depended substantially on circumstantial evidence: Winnie Lo v HKSAR^[24];

(5)  The tainted evidence of  the “target evidence” might have unduly influenced the jury to find against him: HKSAR v Shakeel Ahmed^[25];

(6)  As a result, the conviction was unsafe and unsatisfactory.

The respondent’s submission in reply

16.  Mr Derek Wong, for the respondent, opposed the renewal application.

17.  In respect of Ground (1), Mr Wong submitted that the court record showed that a Bengali interpreter was arranged to assist the applicant.  At no time during the trial did the applicant himself or through his counsel raise any objection or complaint in relation to any interpretation issue.

18.  As for Ground (2), the lack of clarity of the said photograph was neither here nor there as the defence case at trial was that the applicant had no knowledge of the drugs since he was set up or framed up.

19.  Regarding Grounds (3) and (5), it was contended that no directions pursuant to the strict terms of Chung Tang Ping needed to be given in this case for the following reasons.  The term “target” was used to describe Room C not the applicant and in fact the defence wanted such evidence given, together with the undisputed fact that Room C was raided two days prior to the material day, in order to advance the defence case of a frame-up.  In any event, a warning was given in the prosecution’s closing speech against its impermissible use^[26], which would have prevented any improper speculation or influence on the jury’s minds.  A warning pursuant to Chung Tang Ping would thus be artificial and problematic for the jury.  Furthermore, clear directions were given in the summing-up allowing the jury to focus on how the search was conducted and whether the search took place as testified to by the police officers^[27]. The judge’s directions were adequate and appropriate in the circumstances of this case.

20.  Regarding Ground (4),  the judge reminded the jury that there was no direct evidence of  the applicant’s knowledge and the prosecution was relying on circumstantial evidence to prove this element^[28]. The meaning of circumstantial evidence was explained.  The jury were told that they must be sure of the applicant’s guilt in order to convict^[29].  In response to a question from the jury, the judge once again explained to them the concept of circumstantial evidence and told them if they were to draw an inference against the applicant must be the only irresistible inference^[30].

21.  For the above reasons, there was nothing unsafe and unsatisfactory about the conviction and accordingly Ground (6) must fail.

Discussion

22.  We noted that Ground (1), which complained about interpretation, was only raised some four months after leave was refused by the Single Judge.  We also observed that when this ground was first formulated, the allegation was that an Indian instead of Bengali interpreter had been arranged for him at the trial.  At the hearing before us, the applicant changed his stance and accepted that a Bengali interpreter was arranged but went on to complain that the evidence of the prosecution witnesses was not explained to him.  However, according to the court’s record, throughout the whole trial proceedings, no complaint, either by the applicant personally or through his legal representatives was ever made to the trial judge on that aspect.  In fact, the applicant elected and duly gave evidence in Bengali.  No issue was ever taken about interpretation.  We were of the view that his complaint and any further attempt to make allegations against his legal team were wholly unsubstantiated.

23.  Turning to Ground (2), the applicant had given evidence as to the state of the wooden door and the iron grille.  We looked at the photograph album that was before the jury, which showed the state of the iron grille and the wooden door.  That evidence was highlighted in the defence closing submission[31] and repeated in the summing up[32].  The insecure state of the doors and ease of access, which was not inconsistent with the possibility of someone entering Room C and planting the drugs there to set him up, was stated in unequivocal terms in the defence closing submission to the jury. We did not consider that the absence of a clear photograph supporting his contention about the state of his doors was in any way damaging to his case.

24.  We now turn to Grounds (3) and (5) in relation to the complaint about “target” or “information” evidence. We note that in Chung Tang Ping, the defence proactively brought up the issue of police acting on information as verification evidence.  The prosecution witnesses were asked the details of the information in order to show that the particulars of the targeted person matched that of the applicant.  In our case, the evidence was only restricted to the fact that information relating to the premises was received on two occasions.  There was not a single mention that the information related to the applicant.[33]  Nothing more on the contents of such information was admitted into evidence.

25.  In HKSAR v Shakeel Ahmed[34], the Court of Appeal examined how the jury were addressed by defence counsel in order to appreciate the terms and scope of the defence case[35].  One special feature pertaining to the present case was the evidence of the earlier raid two days prior to the material day, and that another team of police officers had already been to Room C pursuant to information, where they had conducted a fruitless search.  Defence counsel, after mentioning the two searches, submitted to the jury:

“…a possible answer to this case, you may think, that someone was trying to frame the defendant. And that’s why … the police received their intelligence on the 26th resulting in a search of his home. Then when nothing happened, when no drugs were found in his home on the 26th, an informant, again an unknown informant, provided intelligence to another police team on the 28th, that the defendant had dangerous drugs in his home.

…

… So … if someone was trying to frame the defendant, set him up, it would have been easy for them to go in on the night of the 27th, place things under his bed, then ring up the police the following day and tell them the defendant has dangerous drugs in his home…”[36]

26.  In stark contrast with the defence case, prosecuting counsel, in his closing submission, only mentioned that the “target evidence” merely showed that police had information that there were likely to be drugs in that flat[37]. He did not purport to use that evidence, but instead, emphasized to the jury:

“…We don’t know, there is no evidence, as to who that information came from, as to when it was given to the police, as to why it was given to the police and as to how it was given to the police. All the evidence is that they had that information. And that’s all you can act on. You’re not entitled to speculate on who gave them the information, why they were given the information, how they were given the information, or anything else. …”[38]

27.  The judge, in her summing up, told the jury to decide whether they could be sure that the incident on 28 April was as testified to by the prosecution witnesses[39]; and in forming a conclusion as to the facts of the present case to ask:

“…What actually happened inside the flat? What was found? Where was it found? So the main the most important issue you have to resolve was whether the search took place as testified by the police officers, … that their evidence was the white bag with the colouring - - with the red and blue lettering, was found on top of the bedside table inside the bedroom. …’[40]

28.  The jury were also told that if they should decide what the applicant had told them was or might be true, they must find him not guilty[41].

29.  It was obviously a tactical decision on the part of the defence to admit the “target evidence” in order to advance their case of a set-up, and also to pose the question whether drugs would have been left so conspicuously as the police alleged only two days after a previous raid.  The present case bears no resemblance to cases which warrant a Chung Tang Ping’s direction and there was no danger of the jury being biased against the applicant as a result of that evidence.  That was never the prosecution stance.

30.  The judge dealt with circumstantial evidence at length.  She told the jury right at the beginning of the summing up that “the prosecution is actually relying on circumstantial evidence”[42] and they would have to decide whether the circumstantial evidence “pointed to the only conclusion that the defendant was guilty of trafficking in dangerous drugs”[43].  It was further explained in the context of whether the applicant knew that they were dangerous drugs[44] and the prosecution relied on circumstantial evidence to prove knowledge[45].  The judge identified what was the circumstantial evidence against the applicant[46] and told the jury that such circumstantial evidence could also be used to prove the element of trafficking[47].

31.  It is only when a jury is being invited to find the prosecution’s case or a part of it, proved by the drawing of inferences from primary facts that a special direction on the drawing of inferences may be warranted: Tang Kwok Wah v HKSAR[48]. The present case is not one of those cases.  In any event, in reply to one of the jury questions, the judge repeated her directions on circumstantial evidence[49] and used examples to illustrate what was meant by “the only irresistible inference”[50].  There is nothing in Ground (4).

32.  All the grounds failed.  Accordingly, we refused to grant leave and dismissed the appeal.  We considered it appropriate to order 3 months’ loss of time as the applicant was represented by experienced counsel both at the trial and at the leave application and his grounds were wholly without merit.  He had the benefit of a detailed judgment from the Single Judge and been fully warned of the consequence of a failed renewal but nonetheless sought to renew those grounds and to put in further unsubstantiated grounds making allegations against his trial counsel.  He advanced no reasons as to why this order pursuant to section 83W(1) of the Criminal Procedure Ordinance, Cap 221 should not be made.